Russia flouts international law in U.S. lawsuit

“Russia is showing its contempt and disdain for international law, the American judicial system, and basic principles of fairness and justice,” said Nathan Lewin, attorney for the world-wide Chabad-Lubavitch movement.

The remark was in response to Russia’s surprise announcement, filed with the federal court in Washington, D.C. in recent days. In an epic legal and diplomatic contest that dates back to the World War I, Russia is defiantly refusing to release some 381 spiritual manuscripts, 12,000 rare books and 25,000 handwritten archival documents plundered from East Europe from the charismatic Jewish Chabad-Lubavitch movement. The collection handed down from generation to generation constitutes “the central wisdom, comprehension and knowledge” of the Chabad movement. Without those documents, Chabad is without its spiritual soul, it says. Indeed, the word “Chabad” itself is an acronym for the Hebrew words for “central wisdom, comprehension and knowledge.”

Deadlocked in litigation for years, and international pressure for decades, Russian authorities, declared this week that the Putin government would not “further participate” in the case. This was done as legal scholars predicted the courts would grant the Chabad movement a stunning victory in its epic effort to reclaim its papers. Chabad’s legal team is headed by the Washington law firm of Lewin and Lewin, LLP. Known for championing Jewish causes— Nathan Lewin and Alyza Lewin -- sometimes called “attorneys for the Tribe,” worked together with attorneys from Howrey LLP and Bingham McCutchen LLP to obtain a rare federal court decision earlier this year commanding Moscow to preserve the books and documents and instructing Russia to provide the Court with a written description of the steps it is taking to preserve the books and manuscripts. A court-ordered handover seemed imminent according to legal scholars watching the case.

By way of information, Russia was sued in a United States federal court in November 2004 by Chabad, which had exhausted diplomatic efforts over a 20-year period to bring its sacred books and manuscripts to the United States, where the Hasidic movement has its international headquarters. With the support of American Presidents beginning with Ronald Reagan, endorsed by unanimous resolutions of the United States Senate, and with the active support of Vice-President Al Gore, Chabad had obtained a series of promises from Russia’s top leaders that these venerated documents and volumes would be restored to their rightful owners.

When Moscow’s promises were not kept and litigation was the only recourse, Chabad invoked American law. The group cited a recent Supreme Court decision concerning paintings taken unlawfully from Jewish owners during the Holocaust. The litigation was initiated by Marshall B. Grossman and Seth M. Gerber of the Bingham McCutchen law firm, and when the case was transferred to Washington, D.C., Nathan and Alyza Lewin as well as W. Bradford Reynolds of the Howrey law firm joined as counsel. The case is now pending before Chief Judge Royce Lamberth of the United States District Court for the District of Columbia.

At first Russia tried to fight the case. It hired prestigious international lawyers to argue in the United States courts Russia enjoyed a sovereign right not to return the papers and that American courts in any case had no jurisdiction to hear and determine Chabad’s claim. On June 13, 2008, the United States Court of Appeals for the District of Columbia unanimously agreed that the federal courts did indeed possess jurisdiction. The District Court was directed to decide the case. It was then that Moscow simply walked away from the court proceedings, in effect daring American judges to enforce a decision in Russia.

Moscow authorities fired its American lawyers and simply declared, “this Court has no authority to enter orders with respect to the property.” Nathan Lewin called the move “brazen” and “a contemptuous slap in the face of the United States courts which squarely rejected the very legal position that Russia now asserts unilaterally.”

Lewin and Lewin insist that Chabad will press forward for the return of priceless religious artifacts—whether or not Russia chooses to participate in the ongoing court proceedings. If necessary, Chabad will enforce a judgment to “by all available legal means,” warned Nathan Lewin. That conjured up notions of a potential money judgment and consequent seizures of Russian property in the U.S. such as Aeroflot airplanes. This in turn would undoubtedly result in a retaliatory seizure of American property by the Russians.

The saga begins in 1915, during World War I, when the advancing German army was approaching Lubavitch in Russia. Rabbi Shalom Dov Baer (the “Fifth Rebbe”) fled with his family and followers, taking with him as many of the key books and manuscripts as he could carry. He sent the balance of the books for safe keeping in storerooms belonging to the Persits family in Moscow. The Bolshevik revolution and the ensuing Civil War prevented the Fifth Rebbe from ever accessing to his books again.
The Bolshevik revolutionaries seized the library in 1917. In 1924, the Union of Soviet Socialist Republics (USSR) took possession of the books, storing them at what is now known as the Russian State Library. The books remain at that location today.

Rabbi Joseph Isaac Schneersohn, the “sixth Rebbe,” maintained and augmented the original archival collection for the benefit of the worldwide Lubavitch community. In 1927, the Soviets arrested the Sixth Rebbe, incarcerating him at Spalerno prison in Leningrad. There, he was interrogated, tortured, and sentenced to death. Under pressure from Western governments, Rabbi Schneersohn was permitted to leave the USSR in 1927 and settle in Riga, Latvia, where he became a citizen. In 1933, he moved to Warsaw, Poland. The archival collection was carried with him when he settled in Latvia and again when he eventually settled in Poland. In fact, the USSR provided the Sixth Rebbe with documentation permitting him to take the archive documents, thus disavowing any ownership by the USSR.

World War II began at dawn on September 1, 1939 when Nazi Germany launched its infamous Blitzkrieg against Poland, invading from the West. Seventeen days later, the Soviets attacked Poland from the East. The Sixth Rebbe remained in Warsaw throughout its bombardment and fall to Nazi Germany. With the intercession of the U.S. Department of State and others, Rabbi Schneersohn was eventually given safe passage back to Riga, Latvia. From there, he relocated to Stockholm, and finally arrived in the United States on March 19, 1940. Later, he became an American citizen.

When the Sixth Rebbe was rescued from Poland, he was unable to take the archive, and the precious documents remained in Poland throughout World War II. The Soviet Army occupied eastern Poland from September 1939 until June 1941, when Nazi Germany attacked the USSR. Days after overrunning Auschwitz in mid-January 1945, the fast moving Soviet Army liberated Warsaw from Nazi Germany.

During Nazi Germany’s occupation of Poland, the Nazis looted and destroyed religious assets as part of its genocidal campaign to exterminate the Jews. Some iconic religious items however were preserved as trophies.

In the ashes of the 1945 liberation, and for decades thereafter, the fate of the Lubavitch archive remained a mystery. However, in the 1970s, a portion of the archive was found in Poland and returned by the Polish government to the group. Those recovered archival documents were sent to the organization’s central library in New York. Chabad always believed the balance of the archival collection was taken by the Soviets as war booty after World War II and transported for storage at the Russian Military Archive.
For decades, Russian authorities concealed the existence and whereabouts of the archive. For example, in 2000, the Russian Military Archive spurned Chabad’s request to inspect how much, if any, of its materials in Russian hands remained intact. Not until the 2003-2004 timeframe was Chabad able to confirm the existence and presence of the archive.

Edwin Black edits The Cutting Edge News and is the author of IBM and the Holocaust, and the just-released Nazi Nexus.